BYLAWS
OF
●, INC.
(A DELAWARE CORPORATION)
ARTICLE I
OFFICES
Section 1.
Registered Office. The registered office of the corporation in the State of
Delaware shall be as set forth in the Certificate of Incorporation of the corporation or as otherwise
designated by the Board of Directors of the corporation.
Section 2.
Other Offices. The corporation shall also have and maintain an office or
principal place of business at such place as may be fixed by the Board of Directors, and may also have
offices at such other places, both within and without the State of Delaware, as the Board of Directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
CORPORATE SEAL
Section 3.
Corporate Seal. The Board of Directors may adopt a corporate seal. The
corporate seal shall consist of a die bearing the name of the corporation and the inscription, “Corporate
Seal-Delaware.” Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE III
STOCKHOLDERS’ MEETINGS
Section 4.
Place of Meetings. Meetings of the stockholders of the corporation may be held
at such place, either within or without the State of Delaware, as may be determined from time to time by
the Board of Directors. The Board of Directors may, in its sole discretion, determine that the meeting
shall not be held at any place, but may instead be held solely by means of remote communication as
provided under the Delaware General Corporation Law (“DGCL”).
Section 5.
Annual Meeting.
(a)
The annual meeting of the stockholders of the corporation, for the purpose of
election of directors and for such other business as may lawfully come before it, shall be held on such
date and at such time as may be designated from time to time by the Board of Directors. Nominations of
persons for election to the Board of Directors of the corporation and the proposal of business to be
considered by the stockholders may be made at an annual meeting of stockholders: (i) pursuant to the
corporation’s notice of meeting of stockholders; (ii) by or at the direction of the Board of Directors; or
(iii) by any stockholder of the corporation who was a stockholder of record at the time of giving of notice
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provided for in the following paragraph, who is entitled to vote at the meeting and who complied with the
notice procedures set forth in Section 5.
(b)
At an annual meeting of the stockholders, only such business shall be conducted
as shall have been properly brought before the meeting. For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (iii) of Section 5(a) of these
Bylaws, (i) the stockholder must have given timely notice thereof in writing to the Secretary, (ii) such
other business must be a proper matter for stockholder action under the DGCL, (iii) if the stockholder, or
the beneficial owner on whose behalf any such proposal or nomination is made, has provided the
corporation with a Solicitation Notice (as defined in this Section 5(b)), such stockholder or beneficial
owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at
least the percentage of the corporation’s voting shares required under applicable law to carry any such
proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of
proxy to holders of a percentage of the corporation’s voting shares reasonably believed by such
stockholder or beneficial owner to be sufficient to elect the nominee or nominees proposed to be
nominated by such stockholder, and must, in either case, have included in such materials the Solicitation
Notice, and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this
section, the stockholder or beneficial owner proposing such business or nomination must not have
solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice under
this Section 5. To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the ninetieth (90th) day nor
earlier than the close of business on the one hundred twentieth (120th) day prior to the first anniversary of
the preceding year’s annual meeting; provided, however, that in the event that the date of the annual
meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the
anniversary of the preceding year’s annual meeting, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to such
annual meeting and not later than the close of business on the later of the ninetieth (90 th) day prior to such
annual meeting or the tenth (10th) day following the day on which public announcement of the date of
such meeting is first made if such announcement is made less than one hundred (100) days prior to the
date of such meeting. In no event shall the public announcement of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder’s notice as described above. Such
stockholder’s notice shall set forth: (A) as to each person whom the stockholder proposed to nominate for
election or reelection as a director all information relating to such person that is required to be disclosed
in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “1934
Act”) and Rule 14a-4(d) thereunder (including such person’s written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (B) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made;
and (C) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made (1) the name and address of such stockholder, as they appear on the
corporation’s books, and of such beneficial owner, (2) the class and number of shares of the corporation
which are owned beneficially and of record by such stockholder and such beneficial owner, and (3)
whether either such stockholder or beneficial owner intends to deliver a proxy statement and form of
proxy to holders of, in the case of the proposal, at least the percentage of the corporation’s voting shares
required under applicable law to carry the proposal or, in the case of a nomination or nominations, a
sufficient number of holders of the corporation’s voting shares to elect such nominee or nominees (an
affirmative statement of such intent, a “Solicitation Notice”).
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(c)
Notwithstanding anything in the second sentence of Section 5(b) of these Bylaws
to the contrary, in the event that the number of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement naming all of the nominees for director or
specifying the size of the increased Board of Directors made by the corporation at least one hundred (100)
days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required
by this Section 5 shall also be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the
corporation not later than the close of business on the tenth (10th) day following the day on which such
public announcement is first made by the corporation.
(d)
Only such persons who are nominated in accordance with the procedures set
forth in this Section 5 shall be eligible to serve as directors and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 5. Except as otherwise provided by law, the chairman of the meeting shall have
the power and duty to determine whether a nomination or any business proposed to be brought before the
meeting was made, or proposed, as the case may be, in accordance with the procedures set forth in these
Bylaws and, if any proposed nomination or business is not in compliance with these Bylaws, to declare
that such defective proposal or nomination shall not be presented for stockholder action at the meeting
and shall be disregarded.
(e)
Notwithstanding the foregoing provisions of this Section 5, in order to include
information with respect to a stockholder proposal in the proxy statement and form of proxy for a
stockholders’ meeting, stockholders must provide notice as required by the regulations promulgated under
the 1934 Act. Nothing in these Bylaws shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the corporation proxy statement pursuant to Rule 14a-8 under the 1934 Act.
(f)
For purposes of this Section 5, “public announcement” shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or comparable national news
service or in a document publicly filed by the corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the 1934 Act.
Section 6.
Special Meetings.
(a)
Special meetings of the stockholders of the corporation may be called, for any
purpose or purposes, by (i) the Chairman of the Board of Directors, (ii) the Chief Executive Officer, or
(iii) the Board of Directors pursuant to a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in previously authorized directorships at the
time any such resolution is presented to the Board of Directors for adoption) or (iv) by the holders of
shares entitled to cast not less than twenty percent (20%) of the votes at the meeting, and shall be held at
such place, on such date, and at such time as the Board of Directors shall fix.
(b)
If a special meeting is properly called by any person or persons other than the
Board of Directors, the request shall be in writing, specifying the general nature of the business proposed
to be transacted, and shall be delivered personally or sent by certified or registered mail, return receipt
requested, or by telegraphic or other facsimile transmission to the Chairman of the Board of Directors, the
Chief Executive Officer, or the Secretary. No business may be transacted at such special meeting
otherwise than specified in such notice. The Board of Directors shall determine the time and place of
such special meeting, which shall be held not less than thirty-five (35) nor more than one hundred twenty
(120) days after the date of the receipt of the request. Upon determination of the time and place of the
meeting, the officer receiving the request shall cause notice to be given to the stockholders entitled to
vote, in accordance with the provisions of Section 7 of these Bylaws. Nothing contained in this paragraph
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(b) shall be construed as limiting, fixing, or affecting the time when a meeting of stockholders called by
action of the Board of Directors may be held.
Section 7.
Notice of Meetings. Except as otherwise provided by law, notice, given in
writing or by electronic transmission, of each meeting of stockholders shall be given not less than ten (10)
nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such
meeting, such notice to specify the place, if any, date and hour, in the case of special meetings, the
purpose or purposes of the meeting, and the means of remote communications, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote at any such meeting. If
mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholder’s address as it appears on the records of the corporation. Notice of the
time, place, if any, and purpose of any meeting of stockholders may be waived in writing, signed by the
person entitled to notice thereof or by electronic transmission by such person, either before or after such
meeting, and will be waived by any stockholder by his attendance thereat in person, by remote
communication, if applicable, or by proxy, except when the stockholder attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Any stockholder so waiving notice of such meeting shall be
bound by the proceedings of any such meeting in all respects as if due notice thereof had been given.
Section 8.
Quorum. At all meetings of stockholders, except where otherwise provided by
statute, or by the Certificate of Incorporation or these Bylaws, the presence, in person, by remote
communication, if applicable, or by proxy duly authorized, of the holders of a majority of the outstanding
shares of stock entitled to vote shall constitute a quorum for the transaction of business. In the absence of
a quorum, any meeting of stockholders may be adjourned, from time to time, either by the chairman of
the meeting or by vote of the holders of a majority of the shares represented thereat, but no other business
shall be transacted at such meeting. The stockholders present at a duly called or convened meeting, at
which a quorum is present, may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum. Except as otherwise provided by statute,
or by the Certificate of Incorporation or these Bylaws, in all matters other than the election of directors,
the affirmative vote of a majority of shares present in person, by remote communication, if applicable, or
represented by proxy duly authorized at a duly constituted meeting and entitled to vote generally on the
subject matter shall be the act of the stockholders. Except as otherwise provided by statute, or the
Certificate of Incorporation or these Bylaws, directors shall be elected by a plurality of the votes of the
shares present in person, by remote communication, if applicable, or represented by proxy duly
authorized at a duly constituted meeting and entitled to vote generally on the election of directors. Where
a separate vote by a class or classes or series is required, except where otherwise provided by statute, or
by the Certificate of Incorporation or these Bylaws, a majority of the outstanding shares of such class or
classes or series, present in person, by remote communication, if applicable, or represented by proxy duly
authorized, shall constitute a quorum entitled to take action with respect to that vote on that matter.
Except where otherwise provided by statute, or by the Certificate of Incorporation or these Bylaws, the
affirmative vote of the majority (plurality, in the case of the election of directors) of shares of such class
or classes or series present in person, by remote communication, if applicable, or represented by proxy
duly authorized at a duly constituted meeting shall be the act of such class or classes or series.
Section 9.
Adjournment and Notice of Adjourned Meetings.
Any meeting of
stockholders, whether annual or special, may be adjourned from time to time either by the chairman of the
meeting or by the vote of a majority of the shares present in person, by remote communication, if
applicable, or represented by proxy duly authorized. When a meeting is adjourned to another time or
place, if any, notice need not be given of the adjourned meeting if the time and place, if any, thereof are
announced at the meeting at which the adjournment is taken. At the adjourned meeting, the corporation
may transact any business which might have been transacted at the original meeting. If the adjournment
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is for more than thirty (30) days or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at
the meeting in accordance with Section 7.
Section 10.
Voting Rights. For the purpose of determining those stockholders entitled to
vote at any meeting of the stockholders, except as otherwise provided by law, only persons in whose
names shares stand on the stock records of the corporation on the record date, as provided in Section 37 of
these Bylaws, shall be entitled to vote at any meeting of stockholders. Every person entitled to vote or
execute consents shall have the right to do so either in person, by remote communication, if applicable, or
by an agent or agents authorized by a proxy granted in accordance with Delaware law. An agent so
appointed need not be a stockholder. No proxy shall be voted after three (3) years from its date of
creation unless the proxy provides for a longer period.
Section 11.
Joint Owners of Stock. If shares or other securities having voting power stand
of record in the names of two (2) or more persons, whether fiduciaries, members of a partnership, joint
tenants, tenants in common, tenants by the entirety, or otherwise, or if two (2) or more persons have the
same fiduciary relationship respecting the same shares, unless the Secretary is given written notice to the
contrary and is furnished with a copy of the instrument or order appointing them or creating the
relationship wherein it is so provided, their acts with respect to voting shall have the following effect: (a)
if only one (1) votes, such person’s act binds all; (b) if more than one (1) votes, the act of the majority so
voting binds all; (c) if more than one (1) votes, but the vote is evenly split on any particular matter, each
faction may vote the securities in question proportionally, or may apply to the Delaware Court of
Chancery for relief as provided in Section 217(b) of the DGCL. If the instrument filed with the Secretary
shows that any such tenancy is held in unequal interests, a majority or even-split for the purpose of
subsection (c) of Section 217 of the DGCL shall be a majority or even-split in interest.
Section 12.
List of Stockholders. The Secretary shall prepare and make, at least ten (10)
days before every meeting of stockholders, a complete list of the stockholders entitled to vote at said
meeting, arranged in alphabetical order, showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, on a reasonably accessible electronic network or
otherwise; provided, that the information required to gain access to such list is provided with the notice of
the meeting, or during ordinary business hours, at the principal place of business of the corporation. In
the event that the corporation determines to make the list available on an electronic network, the
corporation may take reasonable steps to ensure that such information is available only to stockholders of
the corporation. The list shall be open to examination of any stockholder during the time of the meeting
as provided by law.
Section 13.
Action Without Meeting.
(a)
Unless otherwise provided in the Certificate of Incorporation, any action required
by statute to be taken at any annual or special meeting of the stockholders, or any action which may be
taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, or by electronic transmission setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted.
(b)
Every written consent or electronic transmission shall bear the date of signature
of each stockholder who signs the consent, and no written consent or electronic transmission shall be
effective to take the corporate action referred to therein unless, within sixty (60) days of the earliest dated
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consent delivered to the corporation in the manner herein required, written consents or electronic
transmissions signed by a sufficient number of stockholders to take action are delivered to the corporation
by delivery to its registered office in the State of Delaware, its principal place of business or an officer or
agent of the corporation having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or
registered mail, return receipt requested.
(c)
Prompt notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not consented in writing or by
electronic transmission and who, if the action had been taken at a meeting, would have been entitled to
notice of the meeting if the record date for such meeting had been the date that written consents signed by
a sufficient number of stockholders to take action were delivered to the corporation as provided in Section
228(c) of the DGCL. If the action which is consented to is such as would have required the filing of a
certificate under any section of the DGCL if such action had been voted on by stockholders at a meeting
thereof, then the certificate filed under such section shall state, in lieu of any statement required by such
section concerning any vote of stockholders, that written consent has been given in accordance with
Section 228 of the DGCL.
(d)
A telegram, cablegram or other electronic transmission consenting to an action to
be taken and transmitted by a stockholder or proxyholder, shall be deemed to be written, signed and dated
for the purposes of this section; provided, that any such telegram, cablegram or other electronic
transmission sets forth or is delivered with information from which the corporation can determine (i) that
the telegram, cablegram or other electronic transmission was transmitted by the stockholder or
proxyholder or by a person or persons authorized to act for the stockholder and (ii) the date on which such
stockholder or proxyholder or authorized person or persons transmitted such telegram, cablegram or
electronic transmission. The date on which such telegram, cablegram or electronic transmission is
transmitted shall be deemed to be the date on which such consent was signed. No consent given by
telegram, cablegram or other electronic transmission shall be deemed to have been delivered until such
consent is reproduced in paper form and until such paper form shall be delivered to the corporation by
delivery to its registered office in the state of Delaware, its principal place of business or an officer or
agent of the corporation having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to a corporation’s registered office shall be made by hand or by certified or
registered mail, return receipt requested. Notwithstanding the foregoing limitations on delivery, consents
given by telegram, cablegram or other electronic transmission may be otherwise delivered to the principal
place of business of the corporation or to an officer or agent of the corporation having custody of the book
in which proceedings of meetings of stockholders are recorded if, to the extent and in the manner
provided by resolution of the Board of Directors of the corporation. Any copy, facsimile or other reliable
reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and
all purposes for which the original writing could be used; provided, that such copy, facsimile or other
reproduction shall be a complete reproduction of the entire original writing.
Section 14.
Organization.
(a)
At every meeting of stockholders, the Chairman of the Board of Directors, or, if a
Chairman of the Board of Directors has not been appointed or is absent, the Chief Executive Officer, or, if
the Chief Executive Officer is absent, a chairman of the meeting chosen by a majority in interest of the
stockholders entitled to vote, present in person or by proxy, shall act as chairman. The Secretary, or, in
his absence, an Assistant Secretary directed to do so by the Chief Executive Officer, shall act as secretary
of the meeting.
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(b)
The Board of Directors of the corporation shall be entitled to make such rules or
regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or
convenient. Subject to such rules and regulations of the Board of Directors, if any, the chairman of the
meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairman, are necessary, appropriate or convenient for the proper
conduct of the meeting, including, without limitation, establishing an agenda or order of business for the
meeting, rules and procedures for maintaining order at the meeting and the safety of those present,
limitations on participation in such meeting to stockholders of record of the corporation and their duly
authorized and constituted proxies and such other persons as the chairman shall permit, restrictions on
entry to the meeting after the time fixed for the commencement thereof, limitations on the time allotted to
questions or comments by participants and regulation of the opening and closing of the polls for balloting
on matters which are to be voted on by ballot. The date and time of the opening and closing of the polls
for each matter upon which the stockholders will vote at the meeting shall be announced at the meeting.
Unless and to the extent determined by the Board of Directors or the chairman of the meeting, meetings
of stockholders shall not be required to be held in accordance with rules of parliamentary procedure.
ARTICLE IV
DIRECTORS
Section 15.
Number and Term of Office. The authorized number of directors of the
corporation shall be fixed by resolution of the Board of Directors from time to time. Directors need not
be stockholders unless so required by the Certificate of Incorporation. If for any cause, the directors shall
not have been elected at an annual meeting, they may be elected as soon thereafter as convenient.
Section 16.
Powers. The powers of the corporation shall be exercised, its business
conducted and its property controlled by the Board of Directors, except as may be otherwise provided by
statute or by the Certificate of Incorporation.
Section 17.
Term of Directors. Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, directors shall be elected at each annual
meeting of stockholders for a term of one year, provided that, irrespective of the foregoing term, each
director shall serve until his successor is duly elected and qualified or until his death, resignation or
removal. No decrease in the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
Section 18.
Vacancies. Unless otherwise provided in the Certificate of Incorporation, any
vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other
causes and any newly created directorships resulting from any increase in the number of directors shall,
unless the Board of Directors determines by resolution that any such vacancies or newly created
directorships shall be filled by stockholders, be filled only by the affirmative vote of a majority of the
directors then in office, even though less than a quorum of the Board of Directors, or by a sole remaining
director; provided, however, that whenever the holders of any class or classes of stock or series thereof
are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, vacancies
and newly created directorships of such class or classes or series shall, unless the Board of Directors
determines by resolution that any such vacancies or newly created directorships shall be filled by such
stockholders, be filled by a majority of the directors elected by such class or classes or series thereof then
in office, or by a sole remaining director so elected. Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the director for which the
vacancy was created or occurred and until such director’s successor shall have been elected and qualified.
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A vacancy in the Board of Directors shall be deemed to exist under this Bylaw in the case of the death,
removal or resignation of any director.
Section 19.
Resignation. Any director may resign at any time by delivering notice in writing
or by electronic transmission to the Secretary, such resignation to specify whether it will be effective at a
particular time, upon receipt by the Secretary or at the pleasure of the Board of Directors. If no such
specification is made, it shall be deemed effective at the pleasure of the Board of Directors. When one or
more directors shall resign from the Board of Directors, effective at a future date, a majority of the
directors then in office, including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations shall become effective,
and each director so chosen shall hold office for the unexpired portion of the term of the director whose
place shall be vacated and until his successor shall have been duly elected and qualified.
Section 20.
Removal. Subject to any limitations imposed by applicable law or the
Certificate of Incorporation, any director may be removed during his or her term of office, either with or
without cause, only by the affirmative vote of the holders of a majority of the shares of the class or series
of stock entitled to elect such director or directors, given either at a special meeting of such stockholders
duly called for that purpose or pursuant to a written consent of stockholders, and any vacancy thereby
created may be filled by the affirmative vote of the holders of a majority of such stock represented at the
meeting or pursuant to written consent.
Section 21.
Meetings
(a)
Regular Meetings.
Unless otherwise restricted by the Certificate of
Incorporation, regular meetings of the Board of Directors may be held at any time or date and at any place
within or without the State of Delaware which has been designated by the Board of Directors and
publicized among all directors, either orally or in writing, including a voice-messaging system or other
system designated to record and communicate messages, facsimile, telegraph or telex, or by electronic
mail or other electronic means. No further notice shall be required for a regular meeting of the Board of
Directors.
(b)
Special Meetings.
Unless otherwise restricted by the Certificate of
Incorporation, special meetings of the Board of Directors may be held at any time and place within or
without the State of Delaware whenever called by the Chairman of the Board of Directors, the Chief
Executive Officer or any director.
(c)
Meetings by Electronic Communications Equipment. Any member of the
Board of Directors, or of any committee thereof, may participate in a meeting by means of conference
telephone or other communications equipment by means of which all persons participating in the meeting
can hear each other, and participation in a meeting by such means shall constitute presence in person at
such meeting.
(d)
Notice of Special Meetings. Notice of the time and place of all special meetings
of the Board of Directors shall be orally or in writing, by telephone, including a voice messaging system
or other system or technology designed to record and communicate messages, facsimile, telegraph or
telex, or by electronic mail or other electronic means, during normal business hours, at least twenty-four
(24) hours before the date and time of the meeting. If notice is sent by U.S. mail, it shall be sent by first
class mail, postage prepaid at least three (3) days before the date of the meeting. Notice of any meeting
may be waived in writing or by electronic transmission at any time before or after the meeting and will be
waived by any director by attendance thereat, except when the director attends the meeting for the express
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purpose of objecting, at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
(e)
Waiver of Notice. The transaction of all business at any meeting of the Board of
Directors, or any committee thereof, however called or noticed, or wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice, if a quorum be present and if, either before
or after the meeting, each of the directors not present who did not receive notice shall sign a written
waiver of notice or shall waive notice by electronic transmission. All such waivers shall be filed with the
corporate records or made a part of the minutes of the meeting.
Section 22.
Quorum and Voting.
(a)
Unless the Certificate of Incorporation requires a greater number, a quorum of
the Board of Directors shall consist of a majority of the number of directors duly elected and serving but
in no event less than one-third of the authorized number of directors fixed from time to time by the Board
of Directors in accordance with the Certificate of Incorporation; provided, however, at any meeting,
whether a quorum be present or otherwise, a majority of the directors present may adjourn from time to
time until the time fixed for the next regular meeting of the Board of Directors, without notice other than
by announcement at the meeting.
(b)
At each meeting of the Board of Directors at which a quorum is present, all
questions and business shall be determined by the affirmative vote of a majority of the directors present,
unless a different vote be required by law, the Certificate of Incorporation or these Bylaws.
Section 23.
Action Without Meeting. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board
of Directors or of any committee thereof may be taken without a meeting, if all members of the Board of
Directors or committee, as the case may be, consent thereto in writing or by electronic transmission, and
such writing or writings or transmission or transmissions are filed with the minutes of proceedings of the
Board of Directors or committee. Such filing shall be in paper form if the minutes are maintained in
paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 24.
Fees and Compensation. Directors shall be entitled to such compensation for
their services as may be approved by the Board of Directors, including, if so approved, by resolution of
the Board of Directors, a fixed sum and expenses of attendance, if any, for attendance at each regular or
special meeting of the Board of Directors and at any meeting of a committee of the Board of Directors.
Nothing herein contained shall be construed to preclude any director from serving the corporation in any
other capacity as an officer, agent, employee, or otherwise and receiving compensation therefor.
Section 25.
Committees.
(a)
Executive Committee. The Board of Directors may appoint an Executive
Committee to consist of one (1) or more members of the Board of Directors. The Executive Committee,
to the extent permitted by law and provided in the resolution of the Board of Directors shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which
may require it; but no such committee shall have the power or authority in reference to (i) approving or
adopting, or recommending to the stockholders, any action or matter expressly required by the DGCL to
be submitted to stockholders for approval, or (ii) adopting, amending or repealing any bylaw of the
corporation.
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(b)
Other Committees. The Board of Directors may, from time to time, appoint
such other committees as may be permitted by law. Such other committees appointed by the Board of
Directors shall consist of one (1) or more members of the Board of Directors and shall have such powers
and perform such duties as may be prescribed by the resolution or resolutions creating such committees,
but in no event shall any such committee have the powers denied to the Executive Committee in these
Bylaws.
(c)
Term. The Board of Directors, subject to any requirements of any outstanding
series of Preferred Stock and the provisions of subsections (a) or (b) of this Section 25 may at any time
increase or decrease the number of members of a committee or terminate the existence of a committee.
The membership of a committee member shall terminate on the date of his death or voluntary resignation
from the committee or from the Board of Directors. The Board of Directors may at any time for any
reason remove any individual committee member and the Board of Directors may fill any committee
vacancy created by death, resignation, removal or increase in the number of members of the committee.
The Board of Directors may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee, and, in addition, in the
absence or disqualification of any member of a committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the meeting in the place of any
such absent or disqualified member.
(d)
Meetings. Unless the Board of Directors shall otherwise provide, regular
meetings of the Executive Committee or any other committee appointed pursuant to this Section 25 shall
be held at such times and places as are determined by the Board of Directors, or by any such committee,
and when notice thereof has been given to each member of such committee, no further notice of such
regular meetings need be given thereafter. Special meetings of any such committee may be held at any
place which has been determined from time to time by such committee, and may be called by any director
who is a member of such committee, upon notice to the members of such committee of the time and place
of such special meeting given in the manner provided for the giving of notice to members of the Board of
Directors of the time and place of special meetings of the Board of Directors. Notice of any special
meeting of any committee may be waived in writing at any time before or after the meeting and will be
waived by any director by attendance thereat, except when the director attends such special meeting for
the express purpose of objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Unless otherwise provided by the Board of
Directors in the resolutions authorizing the creation of the committee, a majority of the authorized number
of members of any such committee shall constitute a quorum for the transaction of business, and the act
of a majority of those present at any meeting at which a quorum is present shall be the act of such
committee.
Section 26.
Organization. At every meeting of the directors, the Chairman of the Board of
Directors, or, if a Chairman of the Board of Directors has not been appointed or is absent, the Chief
Executive Officer, or if the Chief Executive Officer is absent, the most senior Vice President (if a
director) or, in the absence of any such person, a chairman of the meeting chosen by a majority of the
directors present, shall preside over the meeting. The Secretary, or in his absence, any Assistant Secretary
directed to do so by the Chief Executive Officer, shall act as secretary of the meeting.
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ARTICLE V
OFFICERS
Section 27.
Officers Designated. The officers of the corporation shall include, if and when
designated by the Board of Directors, the Chairman of the Board of Directors, the Chief Executive
Officer, the President, one or more Vice Presidents, the Secretary, the Chief Financial Officer, the
Treasurer and the Controller, all of whom shall be elected at the annual organizational meeting of the
Board of Directors. The Board of Directors may also appoint one or more Assistant Secretaries, Assistant
Treasurers, Assistant Controllers and such other officers and agents with such powers and duties as it
shall deem necessary. The Board of Directors may assign such additional titles to one or more of the
officers as it shall deem appropriate. Any one person may hold any number of offices of the corporation
at any one time unless specifically prohibited therefrom by law. The salaries and other compensation of
the officers of the corporation shall be fixed by or in the manner designated by the Board of Directors.
Section 28.
Tenure and Duties of Officers.
(a)
General. All officers shall hold office at the pleasure of the Board of Directors
and until their successors shall have been duly elected and qualified, unless sooner removed. Any officer
elected or appointed by the Board of Directors may be removed in accordance with Section 31. If the
office of any officer becomes vacant for any reason, the vacancy may be filled by the Board of Directors.
(b)
Duties of Chairman of the Board of Directors. The Chairman of the Board of
Directors, when present, shall preside at all meetings of the stockholders and the Board of Directors. If
the Chairman is unable to preside at such a meeting, the Chairman may appoint another member of the
Board of Directors as the Chairman pro tempore to preside at such meeting, and in the absence of such an
appointment, the Board of Directors may appoint a member of the Board of Directors as the Chairman pro
tempore. The Chairman of the Board of Directors shall perform other duties commonly incident to the
office and shall also perform such other duties and have such other powers as the Board of Directors shall
designate from time to time. If there is no Chief Executive Officer or President elected and serving, then
the Chairman of the Board of Directors shall also serve as the Chief Executive Officer of the corporation
and shall have the powers and duties prescribed in paragraph (c) of this Section 28.
(c)
Duties of Chief Executive Officer. The Chief Executive Officer shall preside at
all meetings of the stockholders and at all meetings of the Board of Directors, if a Chairman of the Board
of Directors has not been appointed or is not present or such Chairman has appointed a Chairman pro
tempore. The Chief Executive Officer shall be the chief executive officer of the corporation and shall,
subject to the control of the Board of Directors, have general supervision, direction and control of the
business and officers of the corporation. The Chief Executive Officer shall perform other duties
commonly incident to the office and shall also perform such other duties and have such other powers, as
the Board of Directors shall designate from time to time.
(d)
Duties of President. If no officer has been appointed Chief Executive Officer of
the corporation, the President shall be the chief executive officer of the corporation and shall, subject to
the control of the Board of Directors, have general supervision, direction and control of the business and
officers of the corporation and shall have all of the powers of the Chief Executive Officer set forth above.
The President shall perform such duties commonly incident to the office and shall also perform such other
duties and have such other powers as the Board of Directors or the Chief Executive Officer (if a Chief
Executive Officer has been appointed) shall designate from time to time.
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(e)
Duties of Vice Presidents. The Vice Presidents may assume and perform the
duties of the Chief Executive Officer or the President in the absence or disability of the Chief Executive
Officer and the President or whenever the office of Chief Executive Officer and President are vacant. The
Vice Presidents shall perform other duties commonly incident to their office and shall also perform such
other duties and have such other powers as the Board of Directors or the Chief Executive Officer shall
designate from time to time.
(f)
Duties of Secretary. The Secretary shall attend all meetings of the stockholders
and of the Board of Directors and shall record all acts and proceedings thereof in the minute book of the
corporation. The Secretary shall give notice in conformity with these Bylaws of all meetings of the
stockholders and of all meetings of the Board of Directors and any committee thereof requiring notice.
The Secretary shall perform all other duties provided for in these Bylaws and other duties commonly
incident to the office and shall also perform such other duties and have such other powers as the Board of
Directors shall designate from time to time. The Chief Executive Officer may direct any Assistant
Secretary to assume and perform the duties of the Secretary in the absence or disability of the Secretary,
and each Assistant Secretary shall perform other duties commonly incident to the office and shall also
perform such other duties and have such other powers as the Board of Directors or the Chief Executive
Officer shall designate from time to time.
(g)
Duties of Chief Financial Officer. The Chief Financial Officer shall keep or
cause to be kept the books of account of the corporation in a thorough and proper manner and shall render
statements of the financial affairs of the corporation in such form and as often as required by the Board of
Directors or the Chief Executive Officer. The Chief Financial Officer, subject to the order of the Board of
Directors, shall have the custody of all funds and securities of the corporation. The Chief Financial
Officer shall perform other duties commonly incident to his office and shall also perform such other
duties and have such other powers as the Board of Directors or the Chief Executive Officer shall
designate from time to time. The Chief Executive Officer may direct the Treasurer or any Assistant
Treasurer, or the Controller or any Assistant Controller to assume and perform the duties of the Chief
Financial Officer in the absence or disability of the Chief Financial Officer, and each Treasurer and
Assistant Treasurer and each Controller and Assistant Controller shall perform other duties commonly
incident to the office and shall also perform such other duties and have such other powers as the Board of
Directors or the Chief Executive Officer shall designate from time to time.
Section 29.
Delegation of Authority. The Board of Directors may from time to time
delegate the powers or duties of any officer to any other officer or agent, notwithstanding any provision
hereof.
Section 30.
Resignations. Any officer may resign at any time by giving notice in writing or
by electronic transmission to the Board of Directors or to the Chief Executive Officer or to the Secretary.
Any such resignation shall be effective when received by the person or persons to whom such notice is
given, unless a later time is specified therein, in which event the resignation shall become effective at
such later time. Unless otherwise specified in such notice, the acceptance of any such resignation shall
not be necessary to make it effective. Any resignation shall be without prejudice to the rights, if any, of
the corporation under any contract with the resigning officer.
Section 31.
Removal. Any officer may be removed from office at any time, either with or
without cause, by the affirmative vote of a majority of the directors in office at the time, or by the
unanimous written consent of the directors in office at the time, or by any committee or superior officers
upon whom such power of removal may have been conferred by the Board of Directors.
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ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING
OF SECURITIES OWNED BY THE CORPORATION
Section 32.
Execution of Corporate Instruments. The Board of Directors may, in its
discretion, determine the method and designate the signatory officer or officers, or other person or
persons, to execute on behalf of the corporation any corporate instrument or document, or to sign on
behalf of the corporation the corporate name without limitation, or to enter into contracts on behalf of the
corporation, except where otherwise provided by law or these Bylaws, and such execution or signature
shall be binding upon the corporation.
All checks and drafts drawn on banks or other depositaries on funds to the credit of the
corporation or in special accounts of the corporation shall be signed by such person or persons as the
Board of Directors shall authorize so to do.
Unless authorized or ratified by the Board of Directors or within the agency power of an officer,
no officer, agent or employee shall have any power or authority to bind the corporation by any contract or
engagement or to pledge its credit or to render it liable for any purpose or for any amount.
Section 33.
Voting of Securities Owned by the Corporation. All stock and other securities
of other entities owned or held by the corporation for itself, or for other parties in any capacity, shall be
voted, and all proxies with respect thereto shall be executed, by the person authorized so to do by
resolution of the Board of Directors, or, in the absence of such authorization, by the Chairman of the
Board of Directors, the Chief Executive Officer, the President, or any Vice President.
ARTICLE VII
SHARES OF STOCK
Section 34.
Form and Execution of Certificates. The shares of the corporation shall be
represented by certificates, or shall be uncertificated. Certificates for the shares of stock, if any, shall be
in such form as is consistent with the Certificate of Incorporation and applicable law. Every holder of
stock in the corporation represented by certificate shall be entitled to have a certificate signed by or in the
name of the corporation by such officers as provided for in Section 158 of the DGCL certifying the
number of shares owned by him in the corporation. Any or all of the signatures on the certificate may be
facsimiles. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before
such certificate is issued, it may be issued with the same effect as if he were such officer, transfer agent,
or registrar at the date of issue.
Section 35.
Lost Certificates. A new certificate or certificates shall be issued in place of any
certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen, or
destroyed, upon the making of an affidavit of that fact by the person claiming the certificate or certificates
of stock to be lost, stolen, or destroyed. The corporation may require, as a condition precedent to the
issuance of a new certificate or certificates, the owner of such lost, stolen, or destroyed certificate or
certificates, or the owner’s legal representative, to agree to indemnify the corporation in such manner as it
shall require or to give the corporation a surety bond in such form and amount as it may direct as
indemnity against any claim that may be made against the corporation with respect to the certificate or
certificates alleged to have been lost, stolen, or destroyed.
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Section 36.
Transfers.
(a)
Transfers of record of shares of stock of the corporation shall be made only upon
its books by the holders thereof, in person or by attorney duly authorized, and, in the case of stock
represented by certificate, upon the surrender of a properly endorsed certificate or certificates for a like
number of shares.
(b)
The corporation shall have power to enter into and perform any agreement with
any number of stockholders of any one or more classes of stock of the corporation to restrict the transfer
of shares of stock of the corporation of any one or more classes owned by such stockholders in any
manner not prohibited by the DGCL.
Section 37.
Fixing Record Dates.
(a)
In order that the corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix, in
advance, a record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall, subject to applicable law,
not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date
is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on
which notice is given, or if notice is waived, at the close of business on the day next preceding the day on
which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board
of Directors may fix a new record date for the adjourned meeting.
(b)
In order that the corporation may determine the stockholders entitled to consent
to corporate action in writing without a meeting, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which date shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. Any stockholder of record seeking
to have the stockholders authorize or take corporate action by written consent shall, by written notice to
the Secretary, request the Board of Directors to fix a record date. The Board of Directors shall promptly,
but in all events within ten (10) days after the date on which such a request is received, adopt a resolution
fixing the record date. If no record date has been fixed by the Board of Directors within ten (10) days of
the date on which such a request is received, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no prior action by the Board of Directors
is required by applicable law, shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in
the State of Delaware, its principal place of business or an officer or agent of the corporation having
custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the
corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.
If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is
required by law, the record date for determining stockholders entitled to consent to corporate action in
writing without a meeting shall be at the close of business on the day on which the Board of Directors
adopts the resolution taking such prior action.
(c)
In order that the corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date, which record date shall not
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precede the date upon which the resolution fixing the record date is adopted, and which record date shall
be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 38.
Registered Stockholders. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Delaware.
ARTICLE VIII
OTHER SECURITIES OF THE CORPORATION
Section 39.
Execution of Other Securities. All bonds, debentures and other corporate
securities of the corporation, other than stock certificates (covered in Section 34), may be signed by the
Chairman of the Board of Directors, the Chief Executive Officer, the President or any Vice President, or
such other person as may be authorized by the Board of Directors, and the corporate seal impressed
thereon or a facsimile of such seal imprinted thereon and attested by the signature of the Secretary or an
Assistant Secretary, or the Chief Financial Officer or Treasurer or an Assistant Treasurer; provided,
however, that where any such bond, debenture or other corporate security shall be authenticated by the
manual signature, or where permissible facsimile signature, of a trustee under an indenture pursuant to
which such bond, debenture or other corporate security shall be issued, the signatures of the persons
signing and attesting the corporate seal on such bond, debenture or other corporate security may be the
imprinted facsimile of the signatures of such persons. Interest coupons appertaining to any such bond,
debenture or other corporate security, authenticated by a trustee as aforesaid, shall be signed by the Chief
Financial Officer or Treasurer or an Assistant Treasurer of the corporation or such other person as may be
authorized by the Board of Directors, or bear imprinted thereon the facsimile signature of such person. In
case any officer who shall have signed or attested any bond, debenture or other corporate security, or
whose facsimile signature shall appear thereon or on any such interest coupon, shall have ceased to be
such officer before the bond, debenture or other corporate security so signed or attested shall have been
delivered, such bond, debenture or other corporate security nevertheless may be adopted by the
corporation and issued and delivered as though the person who signed the same or whose facsimile
signature shall have been used thereon had not ceased to be such officer of the corporation.
ARTICLE IX
DIVIDENDS
Section 40.
Declaration of Dividends. Dividends upon the capital stock of the corporation,
subject to the provisions of the Certificate of Incorporation and applicable law, if any, may be declared by
the Board of Directors pursuant to law at any regular or special meeting. Dividends may be paid in cash,
in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation
and applicable law.
Section 41.
Dividend Reserve. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the Board of Directors from
time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other
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purpose as the Board of Directors shall think conducive to the interests of the corporation, and the Board
of Directors may modify or abolish any such reserve in the manner in which it was created.
ARTICLE X
FISCAL YEAR
Section 42.
Board of Directors.
Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the
ARTICLE XI
INDEMNIFICATION
Section 43.
and Other Agents.
Indemnification of Directors, Executive Officers, Other Officers, Employees
(a)
Directors and Officers. The corporation shall indemnify its directors and
officers to the fullest extent not prohibited by the DGCL or any other applicable law; provided, however,
that the corporation may modify the extent of such indemnification by individual contracts with its
directors and officers; and, provided, further, that the corporation shall not be required to indemnify any
director or officer in connection with any proceeding (or part thereof) initiated by such person unless (i)
such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the
Board of Directors of the corporation, (iii) such indemnification is provided by the corporation, in its sole
discretion, pursuant to the powers vested in the corporation under the DGCL or any other applicable law
or (iv) such indemnification is required to be made under subsection (d) of this Section 43.
(b)
Employees and Other Agents. The corporation shall have power to indemnify
its non-officer employees and other agents as set forth in the DGCL or any other applicable law. The
Board of Directors shall have the power to delegate the determination of whether indemnification shall be
given to any such person to such officers or other persons as the Board of Directors shall determine.
(c)
Expenses. The corporation shall advance to any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director or
officer of the corporation, or is or was serving at the request of the corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise, prior to the final disposition of the
proceeding, promptly following request therefor, all expenses incurred by any director or officer in
connection with such proceeding; provided, however, that, if the DGCL requires, an advancement of
expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the corporation of an
undertaking, by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to appeal that such indemnitee is
not entitled to be indemnified for such expenses under this Section 43 or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant to subsection (e) of
this Section 43, no advance shall be made by the corporation to an officer of the corporation (except by
reason of the fact that such officer is or was a director of the corporation, in which event this subsection
shall not apply) in any action, suit or proceeding, whether civil, criminal, administrative or investigative,
if a determination is reasonably and promptly made (i) by a majority vote of a quorum of directors who
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were not parties to the proceeding, even if not a quorum, or (ii) by a committee of such directors
designated by a majority of such directors, even though less than a quorum, or (iii) if there are no such
directors, or such directors so direct, by independent legal counsel in a written opinion, that the facts
known to the decision-making party at the time such determination is made demonstrate clearly and
convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or
not opposed to the best interests of the corporation.
(d)
Enforcement. Without the necessity of entering into an express contract, all
rights to indemnification and advances to directors and officers under this Bylaw shall be deemed to be
contractual rights and be effective to the same extent and as if provided for in a contract between the
corporation and the director or officer. Any right to indemnification or advances granted by this Bylaw to
a director or officer shall be enforceable by or on behalf of the person holding such right in any court of
competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or (ii)
no disposition of such claim is made within ninety (90) days of request therefor. The claimant in such
enforcement action, if successful in whole or in part, shall be entitled to be paid also the expense of
prosecuting the claim. In connection with any claim for indemnification, the corporation shall be entitled
to raise as a defense to any such action that the claimant has not met the standards of conduct that make it
permissible under the DGCL or any other applicable law for the corporation to indemnify the claimant for
the amount claimed. In connection with any claim by an officer of the corporation (except in any action,
suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such
officer is or was a director of the corporation) for advances, the corporation shall be entitled to raise a
defense as to any such action clear and convincing evidence that such person acted in bad faith or in a
manner that such person did not believe to be in or not opposed to the best interests of the corporation, or
with respect to any criminal action or proceeding that such person acted without reasonable cause to
believe that his conduct was lawful. Neither the failure of the corporation (including its Board of
Directors, independent legal counsel or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in the circumstances because
he has met the applicable standard of conduct set forth in the DGCL or any other applicable law, nor an
actual determination by the corporation (including its Board of Directors, independent legal counsel or its
stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that claimant has not met the applicable standard of conduct. In any suit
brought by a director or officer to enforce a right to indemnification or to an advancement of expenses
hereunder, the burden of proving that the director or officer is not entitled to be indemnified, or to such
advancement of expenses, under this Article XI or otherwise shall be on the corporation.
(e)
Non-Exclusivity of Rights. The rights conferred on any person by this Bylaw
shall not be exclusive of any other right which such person may have or hereafter acquire under any
applicable statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his official capacity and as to action in another
capacity while holding office. The corporation is specifically authorized to enter into individual contracts
with any or all of its directors, officers, employees or agents respecting indemnification and advances, to
the fullest extent not prohibited by the DGCL or any other applicable law.
(f)
Survival of Rights. The rights conferred on any person by this Bylaw shall
continue as to a person who has ceased to be a director, officer, employee or other agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
(g)
Insurance. To the fullest extent permitted by the DGCL, or any other applicable
law, the corporation, upon approval by the Board of Directors, may purchase insurance on behalf of any
person required or permitted to be indemnified pursuant to this Bylaw.
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(h)
Amendments. Any repeal or modification of this Bylaw shall only be
prospective and shall not affect the rights under this Bylaw in effect at the time of the alleged occurrence
of any act or omission to act giving rise to liability or indemnification.
(i)
Saving Clause. If this Bylaw or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each
director and officer to the full extent not prohibited by any applicable portion of this Bylaw that shall not
have been invalidated, or by any other applicable law. If this Section 43 shall be invalid due to the
application of the indemnification provisions of another jurisdiction, then the corporation shall indemnify
each director and officer to the full extent under applicable law.
(j)
Certain Definitions. For the purposes of this Bylaw, the following definitions
shall apply:
(1)
The term “proceeding” shall be broadly construed and shall include,
without limitation, the investigation, preparation, prosecution, defense, settlement, arbitration and appeal
of, and the giving of testimony in, any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative.
(2)
The term “expenses” shall be broadly construed and shall include,
without limitation, court costs, attorneys’ fees, witness fees, fines, amounts paid in settlement or judgment
and any other costs and expenses of any nature or kind incurred in connection with any proceeding.
(3)
The term the “corporation” shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Bylaw
with respect to the resulting or surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
(4)
References to a “director,” “executive officer,” “officer,” “employee,” or
“agent” of the corporation shall include, without limitation, situations where such person is serving at the
request of the corporation as, respectively, a director, executive officer, officer, employee, trustee or agent
of another corporation, partnership, joint venture, trust or other enterprise.
(5)
References to “other enterprises” shall include employee benefit plans;
references to “fines” shall include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to “serving at the request of the corporation” shall include any service as a
director, officer, employee or agent of the corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in
a manner “not opposed to the best interests of the corporation” as referred to in this Bylaw.
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ARTICLE XII
NOTICES
Section 44.
Notices.
(a)
Notice to Stockholders. Written notice to stockholders of stockholder meetings
shall be given as provided in Section 7 herein. Without limiting the manner by which notice may
otherwise be given effectively to stockholders under any agreement or contract with such stockholder,
and except as otherwise required by law, written notice to stockholders for purposes other than
stockholder meetings may be sent by United States mail or nationally recognized overnight courier, or by
facsimile, telegraph or telex or by electronic mail or other electronic means.
(b)
Notice to Directors. Any notice required to be given to any director may be
given by the method stated in subsection (a), or as provided for in Section 21 of these Bylaws. If such
notice is not delivered personally, it shall be sent to such address as such director shall have filed in
writing with the Secretary, or, in the absence of such filing, to the last known post office address of such
director.
(c)
Affidavit of Mailing. An affidavit of mailing, executed by a duly authorized and
competent employee of the corporation or its transfer agent appointed with respect to the class of stock
affected or other agent, specifying the name and address or the names and addresses of the stockholder or
stockholders, or director or directors, to whom any such notice or notices was or were given, and the time
and method of giving the same, shall in the absence of fraud, be prima facie evidence of the facts therein
contained.
(d)
Methods of Notice. It shall not be necessary that the same method of giving
notice be employed in respect of all recipients of notice, but one permissible method may be employed in
respect of any one or more, and any other permissible method or methods may be employed in respect of
any other or others.
(e)
Notice to Person with Whom Communication Is Unlawful. Whenever notice
is required to be given, under any provision of law or of the Certificate of Incorporation or Bylaws of the
corporation, to any person with whom communication is unlawful, the giving of such notice to such
person shall not be required and there shall be no duty to apply to any governmental authority or agency
for a license or permit to give such notice to such person. Any action or meeting which shall be taken or
held without notice to any such person with whom communication is unlawful shall have the same force
and effect as if such notice had been duly given. In the event that the action taken by the corporation is
such as to require the filing of a certificate under any provision of the DGCL, the certificate shall state, if
such is the fact and if notice is required, that notice was given to all persons entitled to receive notice
except such persons with whom communication is unlawful.
(f)
Notice to Stockholders Sharing an Address. Except as otherwise prohibited
under the DGCL, any notice given under the provisions of the DGCL, the Certificate of Incorporation or
the Bylaws shall be effective if given by a single written notice to stockholders who share an address if
consented to by the stockholders at that address to whom such notice is given. Such consent shall have
been deemed to have been given if such stockholder fails to object in writing to the corporation within 60
days of having been given notice by the corporation of its intention to send the single notice. Any consent
shall be revocable by the stockholder by written notice to the corporation.
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ARTICLE XIII
AMENDMENTS
Section 45.
Amendments. The Board of Directors is expressly empowered to adopt, amend
or repeal Bylaws of the corporation. The stockholders shall also have power to adopt, amend or repeal
the Bylaws of the corporation; provided, however, that, in addition to any vote of the holders of any class
or series of stock of the corporation required by law or by the Certificate of Incorporation, such action by
stockholders shall require the affirmative vote of the holders of at least a majority of the voting power of
all of the then-outstanding shares of the capital stock of the corporation entitled to vote generally in the
election of directors, voting together as a single class.
ARTICLE XIV
RIGHT OF FIRST REFUSAL
Section 46.
Approval.
Right of First Refusal; Restriction on Transfer Without Board of Directors
(a)
No stockholder shall sell, assign, pledge, or in any manner transfer any of the
shares of common stock of the corporation (excluding shares of common stock issued upon the
conversion of preferred stock of the corporation) or any right or interest therein, whether voluntarily or by
operation of law, or by gift or otherwise, except by a transfer which meets the requirements hereinafter set
forth in this Section 46(a):
(1)
If the stockholder desires to sell or otherwise transfer any of his shares of
common stock, then the stockholder shall first give written notice thereof to the corporation. The notice
shall name the proposed transferee and state the number of shares to be transferred, the proposed
consideration, and all other terms and conditions of the proposed transfer.
(2)
For 30 days following receipt of such notice, the corporation shall have
the option to purchase all or a portion of the shares specified in the notice at the price and upon the terms
set forth in such notice. In the event of a gift, property settlement or other transfer in which the proposed
transferee is not paying the full price for the shares, and that is not otherwise exempted from the
provisions of this Section 46(a), the price shall be deemed to be the fair market value of the stock at such
time as determined in good faith by the Board of Directors. In the event the corporation elects to
purchase all of the shares or a lesser portion of the shares, it shall give written notice to the transferring
stockholder of its election and settlement for said shares shall be made as provided below Section
46(a)(4).
(3)
(4)
The corporation may assign its rights hereunder.
In the event the corporation and/or its assignee(s) elect to acquire any of
the shares of the transferring stockholder as specified in said transferring stockholder’s notice, the
Secretary shall so notify the transferring stockholder and settlement thereof shall be made in cash within
thirty (30) days after the Secretary receives said transferring stockholder’s notice; provided, that if the
terms of payment set forth in said transferring stockholder’s notice were other than cash against delivery,
the corporation and/or its assignee(s) shall pay for said shares on the same terms and conditions set forth
in said transferring stockholder’s notice.
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(5)
In the event the corporation and/or its assignees(s) do not elect to acquire
all of the shares specified in the transferring stockholder’s notice, said transferring stockholder may,
within the sixty-day period following the expiration of the option rights granted to the corporation and/or
its assignees(s) herein, transfer the shares specified in said transferring stockholder’s notice which were
not acquired by the corporation and/or its assignees(s) as specified in said transferring stockholder’s
notice. All shares so sold by said transferring stockholder shall continue to be subject to the provisions of
this Section 46(a) in the same manner as before said transfer.
(b)
In addition to the restriction set forth in Section 46(a) above, no stockholder shall
sell, assign, pledge, or in any manner transfer any of the shares of common stock of the corporation
(excluding shares of common stock issued upon the conversion of preferred stock of the corporation) or
any right or interest therein, whether voluntarily or by operation of law, or by gift or otherwise without
the prior consent of the corporation, upon duly authorized action of its Board of Directors. Without in
any way limiting the basis on which the corporation may elect not to consent to a sale, assignment, pledge
or transfer, the corporation does not at any time intend to consent to any requested sale, assignment,
pledge or transfer (i) to individuals, companies or any other form of entity identified by the Company as a
potential competitor or considered by the corporation to be unfriendly, [or to non-U.S. individuals,
companies or other entities], or (ii) if such sale, assignment, pledge or transfer increases the risk of the
corporation having a class of security held of record by five hundred or more persons, as described in
Section 12(g) of the 1934 Act, and Rule 12g5-1 promulgated thereunder, or otherwise requiring the
corporation to register any class of securities under the 1934 Act; or (iii) if such sale, assignment, pledge
or transfer would result in the loss of any federal or state securities law exemption relied upon by the
corporation in connection with the initial issuance of such shares or the issuance of any other securities;
or (iv) if such sale, assignment, pledge or transfer is facilitated in any manner by any public posting,
message board, trading portal, internet site, or similar method of communication, including without
limitation any trading portal or internet site intended to facilitate secondary transfers of securities; or (v) if
such sale, assignment, pledge or transfer is to be effected in a brokered transaction; or (vi) if such sale,
assignment, pledge or transfer represents a sale, assignment, pledge or transfer of less than all of the
shares then held by the stockholder and its affiliates or is to be made to more than a single transferee. All
shares sold, assigned, pledged or transferred with the corporation’s consent pursuant to this Section 46(b)
shall continue to be subject to the provisions of this Section 46(b) in the same manner as before said sale,
assignment, pledge or transfer.
(c)
Anything to the contrary contained herein notwithstanding, the following
transactions shall be exempt from the provisions of this Section 46:
(1)
A stockholder’s transfer of any or all shares held either during such
stockholder’s lifetime or on death by will or intestacy to such stockholder’s immediate family or
to any custodian or trustee for the account of such stockholder or such stockholder’s immediate
family or to any limited partnership of which the stockholder, members of such stockholder’s
immediate family or any trust for the account of such stockholder or such stockholder’s
immediate family will be the general of limited partner(s) of such partnership. “Immediate
family” as used herein shall mean spouse, lineal descendant, father, mother, brother, or sister of
the stockholder making such transfer.
(2)
A stockholder’s transfer of any or all of such stockholder’s shares
to the corporation.
(3)
A corporate stockholder’s transfer of any or all of its shares
pursuant to and in accordance with the terms of any merger, consolidation, reclassification of
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shares or capital reorganization of the corporate stockholder, or pursuant to a sale of all or
substantially all of the stock or assets of a corporate stockholder.
(4)
or all of its stockholders.
A corporate stockholder’s transfer of any or all of its shares to any
(5)
A transfer by a stockholder that is a limited or general partnership
to any or all of its partners or former partners.
(6)
A transfer by a stockholder that is a limited liability company to
any or all of its members or former members.
In any such case, the transferee, assignee, or other recipient shall receive and hold such
stock subject to the provisions of this Section 46, and there shall be no further transfer of such stock
except in accord with this Section 46.
(d)
The provisions of this Section 46 may be waived with respect to any transfer
either by the corporation, upon duly authorized action of its Board of Directors, or by the stockholders,
upon the express written consent of the owners of a majority of the voting power of the corporation
(excluding the votes represented by those shares to be transferred by the transferring stockholder). This
Section 46 may be amended or repealed either by a duly authorized action of the Board of Directors, or by
the stockholders upon the express written consent of the owners of a majority of the voting power of the
corporation.
(e)
Any sale or transfer, or purported sale or transfer, of securities of the corporation
shall be null and void unless the terms, conditions, and provisions of this Section 46 are strictly observed
and followed.
(f)
The foregoing right of first refusal and restriction on transfer shall terminate upon
the date securities of the corporation are first offered to the public pursuant to a registration statement
filed with, and declared effective by, the United States Securities and Exchange Commission under the
Securities Act of 1933, as amended.
(g)
The certificates representing shares of stock of the corporation shall bear on their
face the following legends so long as the foregoing right of first refusal and restriction on transfer remains
in effect:
“THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A RIGHT OF FIRST REFUSAL OPTION IN FAVOR
OF THE CORPORATION AND/OR ITS ASSIGNEE(S), AS
PROVIDED IN THE BYLAWS OF THE CORPORATION.”
“THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT
BE TRANSFERRED WITHOUT THE CONSENT OF THE
CORPORATION, AS PROVIDED IN THE BYLAWS OF THE
CORPORATION.”
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ARTICLE XV
LOANS TO OFFICERS
Section 47.
Loans to Officers. Except as otherwise prohibited under applicable law, the
corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other
employee of the corporation or of its subsidiaries, including any officer or employee who is a director of
the corporation or its subsidiaries, whenever, in the judgment of the Board of Directors, such loan,
guarantee or assistance may reasonably be expected to benefit the corporation. The loan, guarantee or
other assistance may be with or without interest and may be unsecured, or secured in such manner as the
Board of Directors shall approve, including, without limitation, a pledge of shares of stock of the
corporation. Nothing in these Bylaws shall be deemed to deny, limit or restrict the powers of guaranty or
warranty of the corporation at common law or under any statute.
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